Citation Nr: 1236066 Decision Date: 10/18/12 Archive Date: 11/05/12 DOCKET NO. 06-33 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for cancer. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a seizure disorder. 4. Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to September 1968. The Veteran served in Vietnam and he was awarded both the Purple Heart and the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2006 the Veteran perfected not only the appeals listed on the cover page of this decision, but also a claim for an increased rating for bilateral hearing loss. An October 2010 rating decision granted the Veteran an increased rating for his bilateral hearing loss disability. Later in October 2010 the Veteran submitted a VA Form 9 to the RO stating that he was limiting his appeals to the hepatitis C, cancer, and seizure disorder issues. Accordingly, the issue of an increased rating for bilateral hearing loss is no longer in appellate status before the Board. The Veteran submitted additional medical evidence subsequent to a February 2012 supplemental statement of the case (SSOC). In August 2012, the Veteran's representative waived RO review of all the newly submitted evidence. The issue of entitlement to service connection for a seizure disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's hepatitis C has been attributed to tattoos and he obtained several tattoos during service. 2. The Veteran did not manifest a malignant tumor during service or within a year of separation from service, and he does not have a current cancer disability that is related to service. 3. In an unappealed December 1994 rating decision, the RO denied service connection for a seizure disorder. 4. Evidence received since the December 1994 rating decision is neither cumulative nor redundant. CONCLUSIONS OF LAW 1. The criteria to establish service connection for hepatitis C have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). 2. Cancer was not incurred or aggravated by service and a malignant tumor may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2011): 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). 3. The criteria for reopening of the claim seeking service connection for a seizure disorder are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Because the previously final claim of entitlement to service connection for a seizure disorder has been reopened, the Board need not discuss whether the notice requirements of the VCAA, as set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006), have been met. In June 2004, prior to the rating decision on appeal, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate his claims and the relative duties upon himself and VA in developing his claims. Quartuccio v. Principi, 16 Vet. App. 183 (2002). As to the duty to assist, VA has associated with the claims folder the Veteran's entrance and separation examination reports, VA medical records, and private medical records. Attempts to obtain the Veteran's remaining service treatment records were unsuccessful. The Veteran has been provided VA medical examinations. The record does not indicate that there are any additional pertinent obtainable records. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Legal Criteria for Service Connection In order to establish service connection for a present disability, a claimant must demonstrate "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (2011) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2011) are also satisfied. Those diseases are as follows: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b) ; Libertine v. Brown, 9 Vet. App. 521, 524 (1996). III. Hepatitis C On VA examination in July 2004 the Veteran reported that he had had a tattoo prior to entry into service. He stated that he got several more tattoos while in service. The evidence supports the Veteran's statements. The Veteran's November 1965 medical examination upon entry to service notes that the Veteran had one tattoo. A September 1969 VA examination report, dated approximately a year after discharge from service, indicates that the Veteran had five tattoos. The Board finds that the Veteran's statements that he obtained several tattoos during service is credible and is supported by the record. The July 2004 VA examiner opined that the Veteran's development of hepatitis C was due to tattoos and drug use. Based on the July 2004 VA medical opinion, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hepatitis C is related to the inservice tattoos. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the Board will apply the benefit-of-the-doubt doctrine and find that the service connection for hepatitis C is warranted. IV. Cancer In April 2004 the Veteran claimed service connection for cancer. In a June 2004 letter the RO requested that the Veteran specify what form of cancer he had, asked the Veteran the date it was diagnosed, and asked whether the cancer was related to active duty military service. On his March 2005 notice of disagreement the Veteran stated that he had liver cancer. The Veteran did not respond regarding the date diagnosed or whether the claimed cancer was related to service. The record does indicate that the Veteran has cirrhosis of the liver, but a claim for service connection for cirrhosis of the liver is not currently in appellate status before the Board. The Veteran did not develop a malignant tumor within a year of discharge from service and is therefore not entitled to service connection for cancer on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The Veteran asserts that a blood test has indicated that he has a high AFP (alpha-fetoprotein) means that he has cancer. The Board has reviewed the extensive medical records in the claims file. None of these records contain any reference to liver cancer, or to any other form of cancer. The Board recognizes that AFP blood tests have been used in helping to detect cancers. However, the fact remains that all the medical evidence fails to indicate any actual finding of any type of cancer. In this case there is no indication that the Veteran has a current cancer disability that is related to service or to a service-connected disability. In this instance, the Veteran may believe that he has a current cancer disability that is related to service. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d. 1372 (2007). The Veteran is competent to describe what comes to him through the senses. See Layno v. Brown, 6 Vet. App 465, 470 (1994). In such cases, the Board is within its province to weigh the contentions and to make a credibility determination as to whether the lay evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Here, however, the Veteran is not shown to have any form of cancer. We have specifically considered the pleadings advanced in this case. However, the pleadings do not establish the existence of current cancer disability. McClain v. Nicholson, 21 Vet. App. 319 (2007). As such, the evidence does not support a basis for service connection. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Under the circumstances, service connection for cancer must be denied. V. New and Material Evidence The Veteran seeks to reopen a claim for service connection for a seizure disorder. In October 1992, the Veteran submitted a claim of service connection for a seizure disorder. In December 1994, the RO denied the Veteran's claim on the basis that the evidence did not support the conclusion that the seizure disorder was associated with herbicide exposure and that there was also no other basis for service connection. The Veteran did not appeal the decision and did not submit new and material evidence within one year of issuance of the decision. Accordingly, the December 1994 rating decision became final. 38 U.S.C.A. § 7105. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.A § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In order to be new and material, the evidence must not be cumulative or redundant, and the threshold for reopening is low. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). When determining whether the appellant has submitted new and material evidence sufficient to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim on any basis, i.e., on the merits or denying reopening. Evans v. Brown, 9 Vet. App. 273 (1996). The evidence of record at the time of the December 1994 decision included the Veteran's September 1968 service discharge examination report which notes that the Veteran had hearing loss secondary to trauma in April 1968. The Veteran was seen in March 1984 for possible seizures. It was noted that he had had cranial trauma one year earlier. The impression was of a normal EEG. At the time of the December 1994 rating decision, the Veteran had not asserted that his seizures were due to an inservice head injury. On VA examination in July 2004 the Veteran reported that he had had epilepsy since 1968, that he was on Dilantin, and that he had grand mal seizures three or four times per year. In October 2008 and December 2009 the Veteran reported that his seizure disorder is related to a head injury during service. The Veteran's statement that he had a head injury during service is considered true for purposes of reopening his claim. See Justus. Furthermore, the service personnel records reveal an award of the Combat Infantryman Badge and a Purple Heart. Additionally, this is not just a naked new theory. In an October 1994 medical report there was a report of post-traumatic epilepsy. The Board therefore finds that the Veteran's statements of inservice head trauma are true. See 38 U.S.C.A. § 1154(b) (West 2002). Given that the Veteran's new statements of inservice head trauma are accepted as true, given that the service treatment records are incomplete, and given that the Veteran's discharge examination report reflects some sort of trauma during service that resulted in a head disability (hearing loss), the Board finds that new and material evidence has been submitted to reopen the Veteran's claim for service connection for a seizure disorder. ORDER Service connection for hepatitis C is granted. Service connection for cancer is denied. New and material evidence having been received, the claim of service connection for a seizure disorder is reopened. REMAND The September 1968 discharge examination notes that the Veteran had bilateral hearing loss due to trauma in April 1968. As noted above, the Veteran asserts that he had a head injury during service, and being that the Veteran served in combat, his assertion it taken as true. See 38 U.S.C.A. § 1154(b). The July 2004 VA examination report includes a diagnosis of seizure disorder, on medication, but provides no opinion as to the etiology of the seizure disorder. Given that the Veteran experienced head trauma during service, the Veteran should be provided a VA examination and a medical opinion regarding the etiology of the Veteran's claimed seizure disorder should be obtained. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate examination to determine the etiology of his seizure disorder. Please note that the Veteran is incarcerated and that more steps than usual may me necessary to arrange the VA medical examination. The claims folder should be made available to the examiner for review in conjunction with the examination. The examiner must confirm or refute whether there is a valid diagnosis of epilepsy or any other seizure disorder. The examiner should provide an opinion as to whether any current seizure disorder is related to the Veteran's military service. In providing the opinion, the examiner should presume that the Veteran's report of an inservice head injury is true. In providing the opinion the examiner should discuss the notation of hearing loss due to trauma noted on the Veteran's discharge examination report, the notation of perforated ear drums on the Veteran's service personnel records, as well a March 1984 VA medical record which notes that the Veteran reported a one year history of head trauma. A full and complete rationale for all opinions expressed should be provided. If the Veteran is unable to appear for an examination, the examiner should provide an opinion based on a review of the Veteran's medical records. 2. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with an SSOC that includes a summary of the evidence received since the February 2012 SSOC. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs